Cohabitation

What is cohabitation?

  • It is when an unmarried couple lives together in a long-term relationship that resembles a marriage.
  • Cohabitation is not regulated by law and does not receive the same protection as marriage.
  • There is no common law marriage in South Africa and the duration that couples spend living together does not mean there is a marriage.

How are couples protected in cohabitation?

  • In order to protect the couple in cohabitation, rights and obligations of the couple can be protected by way of entering into a cohabitation agreement. The agreement regulates the relationship during its existence and after it has come to an end.
  • A cohabitation agreement can be entered into verbally or in writing. It is recommended that such an agreement be concluded in writing and signed.
  • The agreement can be concluded at any time during the relationship.

What does a cohabitation agreement contain?

  • A cohabitation agreement should clearly set out the rights and obligations of the couple and include the following:
    • that the agreement does not constitute a marriage;
    • aspects regarding the joint property such as a home, for example it is best to register or lease the home in both names or arrangements may be made regarding vacation of the home in the event of the relationship coming to an end;
    • regulation of living expenses and which person will be responsible for what expenses;
    • provisions to establish what property and liabilities will be kept separate;
    • aspects regarding life insurance and pension funds;
    • maintenance, if any; and
    • duration and end of the agreement.
  • The cohabitation agreement will only be enforceable between the couple to the agreement and not enforceable against third persons.
  • A cohabitation agreement must not contain provisions that are immoral or illegal.
  • Where a dispute arises regarding the application and interpretation of the agreement, a court may be approached for assistance.

What happens if there is no written cohabitation agreement?

  • If there is no agreement on the dissolution of a relationship, a person is only entitled to retain the property which s/he has purchased and owns.
  • The couple would be entitled to share in the property proportionately in terms of the contribution which they have made to the relationship. Each person will need to prove what property they have acquired together in order to get back what they are entitled to.
  • If a dispute arises, a court may be approached for assistance.
  • It is always a good idea to keep proof of payments in the form of receipts and invoices as they come in handy when the relationship comes to an end.

GLOSSARY OF TERMS:

COMMON LAW MARRIAGE: many persons believe that by living together for a certain amount of time, they enter into a common law marriage. Such a marriage does not exist and the persons are only protected through a cohabitation agreement.

COUPLE: includes a man and a woman or same sex relationships.

MARRIAGE: a person in South Africa can get married in terms of a civil marriage, customary marriage, religious marriage, or a civil union.

How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.


How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.

LEGAL CONTENT DISCLAIMER:

The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. This information has not been provided to meet the individual requirements of a specific person and LegalWise insists that legal advice be obtained to address a person’s unique circumstances. It is important to remember that the law is constantly changing and although LegalWise strives to keep the information up to date and of a high quality, it cannot be guaranteed that the information will be updated and/or be without errors or omissions. As a result, LegalWise, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions by LegalWise, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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